DES MOINES — The Iowa Supreme Court overturned an appeals court decision, ruling a Mexican immigrant should have been informed by his lawyer that he would be deported and forever separated from his young daughter as a result of his guilty plea.

Roberto Morales Diaz, who has lived in Tama for the last 10 years, was questioned by police in 2013 following a domestic disturbance with his daughter’s mother, the ruling shows. During questioning, Toledo police discovered his Texas identification card was registered to a different name. Morales Diaz said he thought the card was legitimate.

Morales Diaz initially said he was in the country legally but then later admitted he wasn’t, the ruling states. He was charged with forgery, a class “D” felony.

He was released on bail and the court continued his case to give him time to resolve his federal immigration status, the ruling shows. On July 8, 2014, he failed to appear for immigration hearing in Omaha, Neb., and then no showed for his plea hearing in Tama County District Court.

The ruling shows Morales Diaz eventually decided to plead guilty to an aggravated misdemeanor, but his lawyer didn’t advise him of the immigration consequences of pleading. His lawyer said he would “probably” be deported no matter what happened because he missed his immigration hearing.

Morales Diaz received a suspended two year sentence and federal authorities removed him from the United States and returned him to Mexico. He then filed for post-conviction relief, arguing he was denied his right to effective assistance of counsel under the Sixth Amendment.

He argued his lawyer should have advised him that pleading guilty would had severe, “automatic and irreversible immigration consequences,” including a proceeding where the Attorney General can change the status of a removable immigrant to that of a lawful resident.

Morales Diaz also argued that his lawyer should have advised him that because he lived in the U.S. for more than 10 years and his "good moral character" would have allowed him to seek relief if he could establish his removal would result in “exceptional and extremely unusual hardship” to his daughter, according to the ruling.

Morales Diaz wanted to withdraw his plea and go to trial.

6th Judicial District Judge Mary Chicchelly agreed with him and vacated his conviction. The judge found Morales Diaz’s lawyer had a duty to advise him of the clear and foreseeable immigration consequences of pleading guilty, not just of the possibility he could be removed.

The state appealed the district court ruling and Iowa Court of Appeals reversed it. The appeals court said Morales Diaz’s lawyer had no duty to advise him of specific immigration consequences of his plea, and said he couldn’t show he was prejudiced by his lawyer’s failure.

The justices on further review overturned the appeals decision and affirmed the district court’s ruling. Defense lawyers, according to case law, have a responsibility to advise non-citizen defendants whether a conviction will result in deportation, the ruling states. Changes in immigration law have increased enforcement and reduced discretion in a criminal conviction and these changes have shifted the responsibility to protect immigrants to the criminal defense lawyers, the ruling points out.

The court also found the ineffective counsel caused Morales Diaz prejudice because he testified that if his lawyer had told him of the immigration consequences he wouldn’t have pleaded.

The state argued illegal immigrants cannot be prejudiced under the ineffective counsel challenge because they are already subject to deportation and removal, the ruling shows.

The justices found the record supports the finding of prejudice because by pleading guilty, “all but guaranteed he would never be physically present” in his daughter’s life. They also concluded his guilt wasn’t “overwhelming” and he could have challenged the elements of the charge.

Justice Edward Mansfield in a concurring opinion said he basically agreed with the majority’s opinion but pointed out it goes a step too far by making it a lawyer’s duty to explain to the client “the full meaning and consequences of deportation.”

Mansfield questions where state public defenders have the resources to meet the “new duty fashioned in today’s decision.” Lawyers will have to advise non-citizen defendants not only on the likelihood of deportation but also on other legal consequences that may result from deportation — “potentially months or years later.”

Mansfield also is concerned this ruling could flood the courts with more post-conviction relief proceedings who were not told about one or more of the other immigration consequences, besides deportation.

The case is remanded back to district court where Morales Diaz will be allowed to withdraw his plea and go to trial. l Comments: (319) 398-8318; trish.mehaffey@thegazette.com

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